Excerpt:.....go to him.;(b) penal code - section 301--opportunity & commission--wide gap between two--no evidence that deceased was last seen alive in company of accused--held, evidence suffers from an infirmity.;her going seen together with the appellant is not an important link in the chain of evidence unless it is established that she was last seen alive with him.;there is a wide gap between opportunity and commission, the two extremities of which must be connected by credible evidence.;there is no reliable evidence on the record that the deceased was last seen alive in the company of the appellant on 19-3-1974 and that she did not return to her husband's house from the fair.;(c) criminal trial - reports of serologist & chemical examiner not revealing extent & position of blood..........wife.6. the first circumstance on which reliance has been placed by the prosecution is that mst. hakri deceased was last seen in the company of the appellant on 12-3-1974, when they left their house for visiting an advasi fair held at village kaya, the prosecution has led evidence of mst. punki p.w. 4, mst. homli p.w. 6, habji p.w. 3 and bhera p.w. 7 to prove this circumstance. mst. punki is the mother of the appellant. her evidence is that the appellant along with his wife mst. hakri had gone to the fair and mst. hakri was wearing one ghagra, one blouse of printed cloth and white sari having dots marked article 1 to 3 and her son dhanji appellant was wearing id chain, bush shirt and dhoti marked articles 4 and 5 respectively on their bodies similar is the evidence of mst. homli p.w......

Judgment:

K.D. Sharma, J.

1. This appeal filed by Dhanji through Superintendent of Central Jail Udaipur is directed against the judgment of the Sessions Judge, Udaipur, dated 24.2.1975 by which the appellant was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/- in default of pay meet of fine to suffer further rigorous imprisonment for a period of 3 months.

2. The prosecution case against the appellant was as follows : The appellant was married to Mst. Hakri deceased. Both husband and wife used to live together in village Barapal along with Nana and Mst. Purki who were parents of the appellant. The appellants sister, namely, Mst. Homli also lived with him in the same house. It is alleged by the prosecution that on 19.3.1974 the appellant accompanied by his wife Mst. Hakri went to see an Advasi fair held at village Kaya. After seeing the fair both husband and wife were seen by Habji P.W. 3 moving towards their village through a jungle. The appellant, how ever, returned alone to his house and did not bring with him his wife Mst. Hakri. Later on 28.3.1974 Dharma son of Kalyan Meena resident of Khara Peena met Dhanraj Sarpanch and disclosed to him that the appellant had murdered his wife Mst. Hakri. Upon receiving this information Dhanraj Sarpanch wrote the first information report and lodged it with the Police Station Nai District Udaipur on 29.3.1974. Shri Narain Singh S.H.O. asked better particulars from the maker of the FIR and recorded his answers at the foot of the report and then registered a criminal case under Sections 302 and 201 IPC on its basis against the appellant. The S.H.O. then arrested Dhanji appellant, who while in the police custody gave an information to the former which led to the recovery of bones, blood stained earth and stone, and one Sari, one blouse, one Ghagra and ornaments from Sakri Naal in the way leading to Chain Bavri at the instance of the appellant. The appellant while in the police custody furnished other information contained in Ex. P11 to S.H.O. Shri Narain Singh in pursuance of which one sword along with its scabbard and one Dhoti end shirt were recovered at the instance of the appellant from his Dhani. The sword and the scabbard were lying buried in the ground underneath a heap of bamboo sticks inside his enclosure while the bush shirt and Dhoti were kept concealed in a box which was lying on the Dagle of the house of the appellant. As these articles were suspected to have blood on them they were seized and sealed properly by the S.H.O. in the presence of the Motbirs. Later on these articles were sent for analysis to the Chemical Examiner who found them positive for blood. The Chemical Examiner forwarded cuttings from Dhoti and shirt and scrappings from sword and sheath to the Serologist for Serological examination The Serologist found the Dhoti and the bush shirt and the scabbard stained with human blood. The blood stains on the scrapping from sword were disintegrated and so their origin could not be determined. Apart from these articles, the sample of earth, scrappings from stones and cuttings from Sari, blouse and Ghagra and pieces of Sari also were found positive for human blood by the Serologist. The S.H.O. collected all other necessary evidence in the case and eventually filed a charge-sheet against Dhanji appellant under Sections 302 and 201 IPC in the court of Munsif and Judicial Magistrate First class No. 1, Udaipur. The learned Judicial Magistrate, upon finding a. prima facie case exclusively triable by the court of Sessions committed the appellant to the court of Sessions Judge, Udaipur for trial for the aforesaid offences. The learned Sessions Judge, conducted the trial and held the appellant guilty of the offence of murder punishable under Section 302 IPC. He, how ever, acquitted the appellant of the charge under Section 201 IPG on the ground that no such offence was made out from the evidence led by the prosecution.

3. Aggrieved by his conviction and sentence the appellant preferred this appeal from Jail. Later on Mr. N.N. Mathur appeared on behalf of the appellant and argued the appeal on his behalf.

4. We have carefully perused the record and heard Mr. N.N. Mathur, learned Counsel for the appellant and Mr. N.S. Acharya Public Prosecutor for the State.

5. At the out set we may observe that the prosecution has nota deduced any direct evidence to prove the connection of Dhanji appellant with the murder of his wife Mst. Hakri. There is no eye witness to the actual occurrence. The case against the appellant hinges on circumstantial evidence alone Before an accused can be convicted on the basis of circumstantial evidence the Court must be satisfied that the incriminating circumstances have been fully established on the record by credible evidence and the proved circumstances are of such a nature as to leave no reasonable ground for a conclusion consistent with his innocence In other words, the circumstantial evidence must unerringly lead to an inference that in all human probability no other person but the appellant was the perpetrator of the crime and it must exclude every other hypothesis consistent with his innocence because if two inferences one of his guilt and another of his innocence-can legitimately be drawn from the impugned act of an accused an element of reasonable doubt as to his guilt creeps in and its benefit must necessarily go to him. Keeping these well settled principles in our view we proceed to examine each and, every circumstance relied upon by the prosecution to connect the appellant with the murder of his wife.

6. The first circumstance on which reliance has been placed by the prosecution is that Mst. Hakri deceased was last seen in the company of the appellant on 12-3-1974, when they left their house for visiting an Advasi fair held at village Kaya, The prosecution has led evidence of Mst. Punki P.W. 4, Mst. Homli P.W. 6, Habji P.W. 3 and Bhera P.W. 7 to prove this circumstance. Mst. Punki is the mother of the appellant. Her evidence is that the appellant along with his wife Mst. Hakri had gone to the fair and Mst. Hakri was wearing one Ghagra, one blouse of printed cloth and white Sari having dots marked Article 1 to 3 and her son Dhanji appellant was wearing Id chain, bush shirt and Dhoti marked Articles 4 and 5 respectively on their bodies Similar is the evidence of Mst. Homli P.W. 6. She also claimed to have seen the appellant and his wife Mst. Hakri going together to the fair. Habji P.W. 3 is the person who was running a hotel at the fair on the day. His evidence that the appellant and his wife Mst. Hakri came to his hotel. The appellant was having one sword and a lathi in his hands and Mst. Hakri was wearing Ghagra Ex. 1, Polka Ex. 2 and Sari Ex. 3 on her person while the appellant was wearing while shirt Ex. 4 and Dhoti Ex. 5 This witness further stated in his deposition at the trial that in the evening he had again seen Dhanji appellant going with his wife towards his village through the jungle. Bhera P.W. 7 also deposed to the fact that Mst. Hakri deceased was seen by him in the company of the appellant and going towards Ratnnighati at about 6 in the evening. He also claimed to have seen the deceased wearing Ghagra Ex. 1, blouse Ex. 2 and Sari Ex. 3 on her body at that time. According to his version, the appellant was wearing shirt Ex. 1 and Dhoti Ex. 5 on his person and was having a sword with its scabbard in his hand. The evidence of these witness so far as it relates to the fact that the deceased was seen in the company of the appellant on 19.3.1974 does not suffer from any infirmity, but her going seen together with the appellant is not an important link in the chain of evidence unless it is established that she was last seen alive with him. It is no doubt true that the commission of an offence is not possible without proper opportunity for the accused to commit it but there is a wide gap between opportunity and commission, the two extremities of which must be connected by credible evidence. In the present case the prosecution has utterly failed to adduce satisfactory evidence in proof of the fact that the deceased was last seen alive in the company of the appellant Both Habji P.W. 3 and Bhera P.W. 7 merely claimed to have seen the appellant and his wife Mst Hakri deceased returning from the fair and going towards their village through a jungle. They did not say that the appellant came back alone to his house on that day without bringing his wife with him. Mst. Punki P.W. 4 when cross-examined by the Public Prosecutor with the leave of the Court at first admitted that the appellant had come back alone to his house from the fair and his wife Mst. Hakri was not with him. But later on when cross examined by the learned Counsel for the appellant she gave a different statement by stating that Mst. Hakri deceased returned alone to her house after her husband had come back and thereafter disappeared from the house on the third day. Hence from her evidence it is not proved beyond reasonable doubt that the deceased did not return alive to her husband's house from the fair. Likewise Mst. Homli clearly stated in her deposition that the appellant and his wife Mst. Hakri deceased had returned to their house from the fair the very day at about 10 in the night. This witness also was declared hostile and cross-examined by the Public Prosecutor. She admitted in her cross-examination that this fact was not disclosed by her to the Police. There no other evidence on the record to show that the appellant returned alone Tom the fair to his house and did not bring his wife Mst. Hakri with him. Hence upon careful review of the entire evidence we have no hesitation in holding that there is no reliable evidence on the record that the deceased was last seen alive in the company of the appellant on 19.3.1974 and that she did not return to her husband's house from the fair.

7. The text piece of circumstantial evidence against the appellant is word with its scabbard was recovered from his house at his instanceand in consequence of an information which he supplied to Shri Narain Singh S.H.O. While in Police custody. The recovery of the sword and its scabbard is proved by the evidence of Shri Narain Singh S.H.O. PW. 13 Dy S.P. Shu Rajendra Prasad PW. 14 and Moti PW. 10 in whose presence the appellant produced the word and its scaled after digging the ground. The sword and its scabbard were seized and sealed soon alter their recovery at the stance of the appellant and in pursuance of his information recorded under Section 27 of the Evidence Act. Later on these articles were sent to the Chemical Examiner who, upon analysis, found them stained with blood but the Serology could not detect human blood on the sword. He how ever reported hat the scabbard was positive for human blood. The reports of the Chemical Examiner and Swologist elating to presence of presence of blood and human blood on the scabbard are of a perfunctory nature as the extent of such stains has not been mentioned therein. Apart from this the learned Session Judge did not examine the appoint on print From a bare perusal of the statement of the appellant taken down by the Session Judge, it is evident that no question was put to the appellant about the presence of human blood on the scabbard of the sword or about the report of the scrologist in this behalf in order to enable him to explain away this circumstance. It was the bounden duty off learned Session. Judge of put the appellant each and every incriminating circumstance appearing against him in the prosecution evidence so as to enable him to give his explanation about it Failure on hi, part to comply with the mandatory provisions of Section 313 Cr.P.C. has caused prejudice to be appellant and rendered this piece of evidence inefficacious, specially when it is not proved by medical evidence otherwise that sword was used in killing the deceased.

8. The next circumstance relied upon by the prosecution is that recovery of bush shirt Act, 4 and Dhoti Article 5 from the dwelling house of the appellant at the latter's instance and in consequence of information which he furnished to Shri Narain Singh SHO while in the police custody. The recovery of these clothes is proved by the evidence of Shri Narain Singh S.P. Shri Rajendra Prasad and Moti' Motbir. These witnesses have definitely stated in their depositions at the trial that the appellant (sic) the Police party and from there produced Shirt Article 4 and Dhoti Article 5 which were lying in a box placed on the Dagla. Thesh articles were sent to the Chemical Examiner who found them positive for blood and forwarded cuttings thereof to the Serology for Serological Examination. The Serologist detected for consideration is whether presence of blood stains of human blood on these clothes. The pertinent question that arises for consideration is whether presence of blood stains on these clothes of the appellant in this case is an incriminating circumstance of such a character as to leave no doubt for a conclusion consistent with his innocence. We may observe that the clothes were recovered on 29.3.1974 i.e. 10 days after the deceased was seen alive is the company of the appellant. The reports of the Chemical Examiner and the Serologic do not reveal the extern and the position of the blood stains found on these clothes. It is the duty of Chemical Examiner to state precisely the number & extent of blood stains detected by him on each article which is sent to them for analysis. If the reports are perfunctory in nature they do not carry much weight as observed by their Lordships of the Supreme Court in case Prabhu Babaji v. State of Bombay reported in AIR 1956 SC 51. The relevant observations made by their Lordships on this point arc qouted below:

The Chemical Examiner's report about the blood stains is slovenly and perfunctory and we have noticed with regret the same slovenliness in the reports of other Chemical Examiners in some other cases that have recently come before us. The Chemical Examiner's duty is to indicate the number of blood stains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail.

Merely to say that blood was detected on an exhibit, as this report states, is not enough. It my well lead to a miscarriage of justice compelling judges to acquit when they would have convicted had the of port been more revealing We trust these observations will be brought to the notice of all Chemical Examiners in the country. Not that they all act like this. Many gave full and detailed reports as they should.

9. The third circumstance on which much stress is laid down by the prosecution is that bones, blood stained stones and earth and the clothes of the deceased such as Ghagra Article 1, blouse Article 2 Sari Ex. 3, silver Lad Ex. 7 and silver Churi Article 6 were recovered from a place i.e. Sakri Naal at the instance of the appellant and in consequence of his information which he furnished to the S.H.O. while in the Police custody. It is no doubt true that the bones were not identifiable as is evident from the statement of Dr. G.S. Purohit P.W. 15 who expressed his inability 10 give an opinion with regard to the duration or cause of death from the examination 6f the bones and who further stated that he could not definitely say if the bones were of human being in the absence of precipitation test but the blood stained clothes and the ornaments which were found near the bones have been fully proved to be of Mst. Hakri deceased which she was wearing on her body at the time of going to the fair and returning from there. From the recovery of these clothes and the bones and the ornaments it can be safely presumed that Mst. Hakri had died But the question that remains to be decided is whether the recovery of the bones, clothes and ornaments inevitably leads, to a conclusion that she was murdered by her husband Dhanji appellant. In our opinion no such conclusion can legitmately be drawn from the mere recovery of the aforesaid articles of the deceased for reasons mentioned below.

10. The recovery of these articles is assailed by the learned, counsel, for the appellant on the ground that they were discovered otherwise than on account of the information furnished by the appellant to the S.H.O. Shri Narain singh while in the Police custody and so the; statement of the Appellant that, he was prepared to produce the bones, clothes and ornaments which he had thrown in the Sakri Naal is not admissible under Section 27 of the Evidence, Act. The above criticism directed against the recovery of bones, clothes and, ornaments appears to be well-founded in view of the admission of P.W. 10 Moti that before the Dy S.P. reached Sakri Naal he had seen these articles lying there and the discovery thereof was made by the S.H.O. and the Dy. S.P. at 8 A.M. The S.H.O. on the other hand stated in his cross examination that the appellant furnished the information at 2 P.M an that day and discovery of these articles were made by him in, consequence of, the information at 3.30 P.M. In this manner, the evidence of Moti Motbjr and the S.H.O. Narain Singh relating to the recovery of these articles is not free from suspicion, and it is highly doubtful whether knowledge of, the existence of these articles was first of all derived by the S.H.O., from information furnished by the appellant. Section 27 of the Evidence Act cannot be made use of to let in a confession generally but only that specific part of the confession is admissible which is distinct and immediate cause of the fact discovered. Consequently we are of the view that the discovery of bones, clothes and ornaments of the deceased in this case is not proved to be such as was made by reason of information given by the appellant. It the aforesaid articles were discovered at 8 A.M. on that day as deposed by Moti Motbir P.W. 10, their recovery cannot be safely held to have been made in consequence of the information of the appellant which he gave to Shri Narain Singh S.H.O. at 2 P.M. on that day.

11. The prosecution made an endeavour to prove motive on the pare of the appellant to commit the murder of his wife. The motive ascribed to the appellant was that he wanted to do away with his wife Mst. Hakri because he had contracted Nata marriage with another woman Mst. Punki, but there is no evidence on the record that the appellant was annoyed with the deceased on this score. The parents of the appellant, namely, Mst. Punki P.W. 4 and Nana P.W. 5 definitely stated in their depositions that although the appellant had contracted a Nata marriage with another woman Mst. Punki, but he used to treat Mst. Punki & the deceased equally with love & affection & there was no quarrel between him & Mst. Hakri deceased on this score. Even if the alleged motive is taken to be proved by the prosecution evidence, it cannot be considered a sufficient evidence of the commission of the crime of murder by the appellant in the absence of any other convincing proof of his guilt. Proof of motive may lead additional support to the conclusion of guilt arrived at from other credible evidence, bat it cannot make good the deficiency of reliable evidence of the commission of the crime.

12. The result of the above discussion is that the prosecution has utterly failed to bring guilt home to the appellant beyond reasonable shadow of doubt. The circumstances established on the record are, in our opinion, incapable of showing that no other person but the appellant was the murderer of his wife. In this view of the matter, the conviction of As appellant under Section 302 IPC cannot be maintained, The appeal filed by Dhanji is, therefore, accepted, his conviction and sentence under Section 302 IPC are set aside and he is acquitted of the charge of murder. The appellant is in fail. He shall be set at liberty forthwith if not required in connection with some other case.